Henry Marange, Jr. v. Custom Metal Fabricators, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-743

HENRY MARANGE, JR.

VERSUS

CUSTOM METAL FABRICATORS, INC., ET AL.

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APPEAL FROM THE
OFFICE OF WORKERS‟ COMPENSATION - # 3
PARISH OF CALCASIEU, NO. 10-01916
CHARLOTTE A. L. BUSHNELL, WORKERS‟ COMPENSATION JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and J. David Painter, Judges.

REVERSED AND RENDERED.

Kathleen Wigginton Will
Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley
3320 West Esplanade Avenue North
Metairie, LA 70002
Telephone: (504) 831-7270
COUNSEL FOR:
Defendants/Appellees - Bridgefield Casualty Insurance Company and
Custom Metal Fabricators, Inc.

Gregory Paul Allen Marceaux
2901 Hodges Street
Lake Charles, LA 70601
Telephone: (337) 310-2233
COUNSEL FOR:
Plaintiff/Appellant - Henry Marange, Jr.

THIBODEAUX, Chief Judge.

Henry Marange Jr. appeals from a judgment by the office of Workers‟

Compensation (OWC) denying him medical treatment, medical expenses, wage

benefits, and penalties and attorney fees, for injuries sustained while employed

with Custom Metal Fabricators, Inc. Finding that the OWC was manifestly

erroneous in its decision to deny benefits, we reverse and render specific awards on

each issue.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in failing to find that the
claimant sustained a work-related injury;

(2) whether the trial court manifestly erred in failing to find that the
claimant was entitled to medical and wage benefits; and

(3) whether the trial court manifestly erred in failing to award
penalties and attorney fees.

II.

FACTS AND PROCEDURAL HISTORY

Henry Marange, Jr., was employed as a welder by Custom Metal. On

December 28, 2009, while grinding weld seams inside a cone-shaped section of a

vessel, his foot slipped on grinding dust, and his body twisted to the left as he fell

forward with the weight of the turning grinder and the force of forward motion.

He felt burning and pulling in his low back and buttocks but continued to work

without reporting the incident. At the morning break, he was called to the phone

regarding a family emergency. He left work to assist with his invalid mother‟s

possible hospitalization, and he did not return to work for the remainder of the day.

The following morning, Mr. Marange awoke with burning and pulling

in his low back and right leg and required assistance getting out of bed. He called

Custom Metal around 7:00 a.m., reported the incident of the previous morning, and

asked to be sent to a physician. The employee to whom he had spoken was Karen

Porter, the company‟s accountant. Ms. Porter called Mr. Marange back thirty

minutes later to inform him that the owner of Custom Metal, Jimmy Cureton,

would not pay for medical treatment because Mr. Marange did not report an

accident. Mr. Marange went to the emergency room (ER) at West Calcasieu

Cameron Hospital on his own. The medical record of that visit indicates that Mr.

Marange had low back pain radiating into his right leg due to the previous day‟s

“injury on duty while using a grinder.”

In January 2010, Mr. Marange made two unanswered demands for

medical treatment and workers‟ compensation benefits and then filed a motion for

medical treatment by Dr. Clark Gunderson. The OWC ordered a medical

examination by Dr. Gunderson.

Dr. Gunderson found that Mr. Marange had developed sciatica related

to the December 28, 2009 work injury and that he was temporarily totally disabled

as a result. Dr. Gunderson prescribed physical therapy and ordered an MRI and a

return visit. He noted that Mr. Marange had also received treatment at W.O. Moss

Regional Medical Center for this injury.

Mr. Marange made a demand for payment of his medical bills and for

the physical therapy and return visit ordered by Dr. Gunderson. Custom Metal has

not authorized payment for this medical treatment.

Following the trial of this matter, the OWC found that Mr. Marange

failed to carry his burden of establishing that he had sustained a work-related

injury under Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992). Mr. Marange

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appeals from that judgment seeking medical treatment, payment of his medical

expenses, temporary total disability benefits, penalties, and attorney fees.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court‟s findings of fact in

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A

two tiered test must be applied in order to reverse the findings of the trial court:

a. the appellate court must find from the record that a
reasonable factual basis does not exist for the
finding of the trial court, and

b. the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Mr. Marange‟s accident was unwitnessed. He stated that he was

standing, grinding a weld seam at shoulder level, with his weight pushing on the

grinder, and with his right foot propped on the cylinder wall. When his right foot

slipped off the wall, where grinding dust had accumulated, his body twisted to the

left with the grinder still turning, and he fell forward. He experienced burning and

pulling in his low back and buttocks.

The workers‟ compensation judge stated in her reasons for judgment

that Mr. Marange testified that he was grinding overhead, and that his assertions

that he was grinding overhead did not comport with the testimony of fellow

workers. She found that, under Bruno, 593 So.2d 357, the co-workers of Mr.

Marange discredited or cast serious doubt on Mr. Marange‟s version of the

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accident. The workers‟ compensation judge cited Kyle Bourgeois, Custom Metal‟s

quality control manager, for his testimony that no one was expected to grind

overhead and that he never saw Mr. Marange grinding at shoulder level or standing

to grind. The workers‟ compensation judge further cited the testimony of co-

worker Mike Ellzey, who said that the grinders weighed only five to six pounds,

that no grinding was done on the sides of the cylinder, and that he did not recall

Mr. Marange standing to grind. Based upon this testimony, she found that Mr.

Marange failed to establish his case by a preponderance of the evidence. We

disagree.

Our jurisprudence provides:

[A]s in other civil actions, the plaintiff-worker in a
compensation action has the burden of establishing a
work-related accident by a preponderance of the
evidence. [Prim v. City of Shreveport, 297 So.2d 421
(La.1974)]; Nelson [v. Roadway Express, Inc., 588 So.2d
350 (La.1991). A worker‟s testimony alone may be
sufficient to discharge this burden of proof, provided two
elements are satisfied: (1) no other evidence discredits or
casts serious doubt upon the worker‟s version of the
incident; and (2) the worker‟s testimony is corroborated
by the circumstances following the alleged incident.
West v. Bayou Vista Manor, Inc., 371 So.2d 1146
(La.1979); Malone and Johnson, 13 Louisiana Civil Law
Treatise, Workers’ Compensation, § 253 (2d Ed.1980).
Corroboration of the worker‟s testimony may be
provided by the testimony of fellow workers, spouses or
friends. Malone & Johnson; Nelson, [588 So.2d 350].
Corroboration may also be provided by medical
evidence. West, [371 So.2d 1146].

Bruno v. Harbert Intern. Inc., 593 So.2d 357, 361 (La.1992).

When there is proof of an attendant disability, without an
intervening cause, it is presumed that the accident caused
the disability. Additionally, the trier of fact‟s
determination as to whether a compensable injury was
suffered is a question of fact and will not be disturbed
unless manifestly erroneous or clearly wrong.

Capitol Mfg. Co. v. Brooks, 99-267, p. 6 (La.App. 3 Cir. 11/3/99), 745 So.2d 825,

829, writ denied, 99-3411 (La. 2/4/00), 754 So.2d 236 (citations omitted).

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[A]n intermediate appellate court is not required to
follow blindly the factual determinations of a trial court
without discerning whether that court‟s discretion in
evaluating facts and credibility has been abused.
Certainly, the fact finder should be accorded great
latitude and discretion, but discretion must always be
buttressed by sound judgment. It is not immutable. To
extend the quality of immutability to a fact finder‟s
determinations simply because it articulates the magical
word, “credibility” effectively limits and circumvents an
appellate court‟s constitutionally given power to review
facts.

Butler v. Zapata Haynie Corp., 92-71, p. 7 (La.App. 3 Cir. 2/23/94), 633 So.2d

1274, 1279, writ granted in part, judgment amended (to adjust amount of lost

earnings awarded by majority), 94-1171 (La. 7/5/94), 639 So.2d 1186, cert. denied,

Zapata Protein (USA), Inc. v. Butler, 513 U.S. 1017, 115 S.Ct. 579 (1994).

Here, the record does not support the trial court‟s conclusions that Mr.

Marange did not meet his burden of proving that he sustained a work accident by a

preponderance of the evidence or that his testimony was discredited by the

testimony of co-workers. Contrary to the court‟s finding, Mr. Marange did not

testify that he was grinding overhead. He testified that he was grinding at shoulder

level. The testimony of co-workers did not, as the trial court found, directly

contradict Mr. Marange‟s version of the events. Moreover, the objective evidence

favors Mr. Marange and militates against the lack of support expressed by the trial

judge.

The testimony of Kyle Bourgeois did not dispute Mr. Marange‟s

testimony regarding the performance of grinding work in a standing position. Mr.

Marange testified that he was grinding at shoulder level on an inside weld seam

that ran up the side of the cylindrical cone-shaped section of the vessel. He stated

that the seam ran around the cylinder, that he had to grind up so far and then the

vessel would be rolled over to finish grinding the rest of the seam. Mr. Marange

testified that he was standing, bracing himself with his right foot on the cylinder

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wall, his weight pushing on the grinder, and the grinder pushing on the wall, when

his right foot slipped off the wall. He fell forward with the grinder turning, and

was twisted to the left, resulting in the injury. He was working alone at the time.

Kyle Bourgeois testified that the floor-to-ceiling height inside the

cylinder was eight or nine feet and that the welded seams inside the cylinder were

360-degree welds. He stated that the easiest way to grind seams was while seated.

He indicated that there was never an occasion to grind overhead because the metal

shop used a crane to rotate the cylinder such that the weld portion to be ground was

positioned on the floor. However, he admitted that every portion of a 360-degree

weld had to be ground smooth; this would include the weld as it ran up the side of

the cylinder. Mr. Bourgeois did not say that there was never an occasion to grind

at shoulder level. In fact, at trial, the following colloquy took place between

counsel for Custom Metal and Kyle Bourgeois:

Q. And the same with the sides: Is there ever an
occasion where a man would have to stand up and
[grind] on the side of the cylinder?

A. Where he could physically reach it; but if he
couldn‟t touch it or reach it, that‟s the point of
rolling it around to where he could reach it.

This testimony indicates that a worker inside the cylinder must follow

the weld as it goes around the cylinder, as long as he can reach or physically touch

the weld, before using the crane to rotate the cylinder. Kyle Bourgeois‟s testimony

supports, rather than disputes, Mr. Marange‟s version of the work environment.

Both testified that it takes two men to operate the crane to rotate the cylinder, and

both testified that the worker grinds a weld as far up as possible before using the

crane to rotate the cylinder. Mr. Marange indicated that companies do not want the

risk of injuries from faulty cranes; therefore, they expect one to use the crane to

roll the vessel as little as possible. Another co-worker, Mike Ellzey, testified that

the cylinder is turned only once every other day.

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Kyle Bourgeois testified that he had seen Mr. Marange twice on the

morning of the incident, and that he was working seated, not standing, at those

times. This testimony, however, accounts for only a few minutes out of a two-and-

one-half hour period of work, and it does not seriously discredit, as Bruno requires,

Mr. Marange‟s testimony that he was standing when the accident occurred. Kyle

Bourgeois testified that he sent Mike Ellzey to help Mr. Marange on the morning

of the incident, but he admitted that Ellzey was subject to being called away as a

helper in other areas of the shop and did not work alongside Mr. Marange the

entire morning. This testimony does not discredit Mr. Marange‟s testimony that he

was working by himself when the accident occurred.

Mike Ellzey, a “tack” helper whose testimony was also cited by the

trial judge, worked with Mr. Marange for a large part of the morning on which the

incident occurred. He admitted that he probably left the cylinder for a water break

and to assist as a helper elsewhere during the morning. Mr. Ellzey confirmed that

the grinding dust does accumulate so much that a worker can slip in it. He stated

that the dust has metal bits in it which stick to you in the hot cylinder and itch

when you sit down. The men had to periodically use air hoses to blow the grinding

dust out of the cylinder.

Mr. Ellzey stated that he usually grinds while sitting or kneeling on

one knee and, as far as he could remember, Mr. Marange was basically doing the

same, though he could not remember which position Mr. Marange used. He

testified that the men usually rolled the cylinder before doing the side seams, but

they only rolled it every other day. When asked whether it was unusual to stand

while grinding, Mr. Ellzey responded, “Well, not – yes, ma‟am.” This answer

changed in midstream, as it began with a negative and switched to a positive. Mr.

Ellzey‟s testimony and responses were filled with qualifiers, such as “usually,”

“basically,” “most of the time,” “as far as [he could] remember.”

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Neither Mr. Bourgeois nor Mr. Ellzey testified that they had never

stood up to grind, or that they had never seen Mr. Marange stand up to grind, or

that standing up to grind was impossible, or that it just was not done. They merely

testified that they thought it was easier to sit or kneel while grinding and that they

did not see Mr. Marange standing to grind on that particular morning. The

objective evidence, the photographs of the eight-to-nine-foot-high cylinder and its

welds, support Mr. Marange‟s testimony regarding standing to grind the seams.

The trial judge further indicated that Mr. Ellzey‟s testimony that the

grinder weighed five or six pounds disputed Mr. Marange‟s testimony that the

grinder weighed forty pounds. We note that Mr. Ellzey also said that it was hard to

hold the grinder up to grind at shoulder level. This testimony seems to be self-

conflicting as it begs the question, if the grinder weighs only five or six pounds,

why is it hard to hold up, particularly when you are pressing it against a wall.

Moreover, Mr. Marange specifically said that the grinder weighed ten pounds and

that with the attachment of the disc and cone, it came to about thirty-five or forty

pounds. Kyle Bourgeios testified that the grinder with the disc weighed ten

pounds. Contrary to the trial judge‟s conclusion, the effect of the actual

discrepancy does not cast serious doubt on Mr. Marange‟s version of the accident.

Three men estimated three different weights for the grinder system.

Mr. Marange weighed 140 to 145 pounds; he was using his weight to

push the grinder against the seam in the wall. When his foot slipped in the dust

and he pitched forward, the turning grinder would likely have felt heavier to him.

Given the mechanics involved, we do not find the weight of the grinder

determinative, and the discrepancies in the estimated weight of the apparatus do

not justify the conclusion that Mr. Marange‟s testimony was seriously discredited.

The trial judge further found that the corroborating testimony and

circumstances following the event did not preponderate in favor of Mr. Marange.

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The record does not support this conclusion. Macie Johnson, though not his legal

wife, had lived with Mr. Marange for eight years, and they referred to each other as

husband and wife. Ms. Johnson testified that she had called Mr. Marange at work

on the morning of December 28 because she believed that his mother, who could

not speak, might have had a heart attack or another stroke. Mr. Marange left work

with permission after the morning break to assist with his invalid mother. Mr.

Marange and Ms. Johnson spent some time trying unsuccessfully to get the mother

to let them admit her into the hospital. The couple finally went to their home in

Vinton and spent the remainder of the day inside the house. Mr. Marange did not

mention the incident with his back that day, but Ms. Johnson confirmed that he

could not get out of bed when the alarm went off the following morning. She had

to help him up and help him get dressed. She asked what was wrong with his back,

and he told her that he had been grinding welds at work the previous day and had

slipped in the grinder dust. Ms. Johnson confirmed that Mr. Marange called work,

spoke to a female employee, and explained that he had hurt his back but did not

realize it until he tried to get out of bed. Ms. Johnson further confirmed that Mr.

Marange had asked for a doctor and that he was called back thirty minutes later by

the female employee and was told that Custom Metal would not pay for anything.

Ms. Johnson then took Mr. Marange to the ER at West Calcasieu

Cameron Hospital. Custom Metal suggests that Mr. Marange may have hurt his

back trying to lift his mother after he left work on the 28 th, but Ms. Johnson, a

former construction worker, testified unequivocally that he did not, that she always

did the lifting, and that Mr. Marange‟s mother only weighed eighty-nine pounds.

Ms. Johnson‟s testimony corroborated Mr. Marange‟s testimony in every respect,

as does the medical evidence.

On December 29, 2009, Mr. Marange was seen at the West Calcasieu

Cameron Hospital ER at 9:11 a.m. with complaints of burning from his low back

9

to right leg. The medical records indicate an injury on duty while using a grinder

the previous day, back pain, decreased range of motion, a shuffling gait, and

muscle spasm. The discharge summary at 11:01 a.m. indicates that medication and

instruction was given for lumbar radiculopathy. Medication given included

Vicodin and Robaxin.

On January 19, 2010, Mr. Marange was seen at W.O. Moss Regional

Medical Center ER for low back pain radiating into his right leg due to having

slipped at work. Medication given included Ibuprofen, Tramadol, and Flexeril.

On April 20, 2010, Mr. Marange saw Dr. Clark A. Gunderson, an

orthopedic surgeon, pursuant to the court‟s order following Mr. Marange‟s motion.

Dr. Gunderson reported that Mr. Marange was grinding on an eight-foot cylinder;

his foot slipped, and the grinder was still running; he sustained a twisting injury to

his lower back; and he developed sciatica. At the time of the visit, Mr. Marange

had lower back pain radiating into his right buttock and thigh down to his knee.

The pain was constant and aggravated by walking, sitting, or standing. Upon

examination, Mr. Marange was limping on his right leg, could not walk on his toes

and heels, had right sided lumbar spasm, limited lumbar motion, and tenderness to

the right of L4-5, as well as in the right sacroiliac and sciatic notch region.

Dr. Gunderson‟s impression was that Mr. Marange‟s current problems

were related to his work injury of December 28, 2009. He recommended an MRI

of the lumbar spine, referred him to physical therapy, and gave him pain

medications, muscle relaxants, and anti-inflammatory agents. Dr. Gunderson did

not believe that Mr. Marange could work and classified him as temporarily

disabled. Dr. Gunderson expected to see Mr. Marange for follow-up on May 18,

2010, but none of the recommended treatment, imaging, or follow-up was

authorized.

10

Mr. Marange was again seen at the West Calcasieu Cameron ER on

July 10, 2010, due to the work injury several months prior, with acute low back

pain and burning, decreased range of motion, and muscle spasm. The medical

report indicates no new injury, but rather continuing low back pain that was worse

upon waking that day. Medication given included Flexeril, Medrol Pak, and

Ultram.

The foregoing objective medical evidence is consistent. It supports

Mr. Marange‟s testimony regarding a work-related accident and militates against

the trial judge‟s finding to the contrary.

Custom Metal contends that Mr. Marange did not have an accident at

work because he reported no accident and felt no injury at the time of the alleged

accident as required under La.R.S. 23:1021(1). We disagree. Louisiana Revised

Statutes 23:1021(1) provides: „“Accident‟ means an unexpected or unforeseen

actual, identifiable, precipitous event happening suddenly or violently, with or

without human fault, and directly producing at the time objective findings of an

injury which is more than simply a gradual deterioration or progressive

degeneration.” Mr. Marange testified that his foot slipped in the grinding dust; he

fell forward with the grinder turning; he twisted his back and felt pulling and

burning in his low back and buttocks at the time. “[M]erely because a worker

completes a day‟s work without reporting an accident does not preclude the worker

from recovering compensation.” Bruno, 593 So.2d at 362.

In Bruno, where the accident was unwitnessed, the Louisiana

Supreme Court overturned our reversal and upheld the OWC‟s finding that the

claimant had sustained a work injury. The court stated:

Louisiana courts consistently have interpreted the
work-related accident requirement liberally. Williams v.
Regional Transit Authority, 546 So.2d 150, 156
(La.1989). Indeed, it is well-settled in Louisiana that an
“accident” exists when “heavy lifting or other strenuous

11

efforts, although usual and customary, cause or
contribute to a physical breakdown or accelerate its
occurrence because of a pre-existing condition.” Cutno
v. Neeb Kearney & Co., 237 La. 828, 112 So.2d 628, 631
(1959); Nelson [v. Roadway Express, Inc., 588 so.2d 350
(La.1991)] (collecting cases). Moreover, Louisiana
courts view the question of whether there was an accident
from the worker‟s perspective. Williams, [546 So.2d
150].

Bruno, 593 So.2d at 360.

In Capitol Manufacturing Co., 745 So.2d 825, an unwitnessed

accident occurred twenty minutes before quitting time on a Friday. The claimant

fell off of a ladder and experienced immediate pain in his back but did not report it

or seek medical attention until the following Monday when he left work and went

to the ER. A co-worker to whom the plaintiff mentioned the accident on the night

it occurred did not recall the conversation and testified that he did not learn of the

accident until a week later. Notwithstanding, where the medical evidence

supported the complaints of pain, we affirmed the OWC‟s finding that a work

accident had occurred and that the claimant‟s actions immediately after the

accident were reasonable under the circumstances. “When there is proof of an

attendant disability, without an intervening cause, it is presumed that the accident

caused the disability.” Id. at 829.

In Richard v. Temple-Inland, 625 So.2d 335 (La.App. 3 Cir. 1993),

we reversed the OWC‟s finding that the claimant sustained no work injury,

because the hearing officer failed to follow the legal principles governing the

required proof of an accident as laid down in Bruno and West v. Bayou Vista

Manor, Inc., 371 So.2d 1146 (La.1979). That is, while there were inconsequential

discrepancies in the testimony, they did not support the OWC‟s conclusion that the

claimant‟s version was not credible. There, as here, the claimant‟s testimony

regarding the accident and injury was really not seriously discredited; nor was it

contradicted to the extent that serious doubt was cast on the plaintiff under Bruno

12

and West. No such serious doubt exists in this case, particularly where Mr.

Marange‟s version of the accident and injury is clearly corroborated by both

medical and lay testimony.

Given the existence of a work-related injury, the OWC was manifestly

erroneous in failing to order the payment of Mr. Marange‟s related medical

treatment and expenses, which we award at this time. As outlined above, Mr.

Marange was seen and treated at West Calcasieu Cameron Hospital, where he

incurred expenses of $1,081.50. He was seen at W.O. Moss Regional Medical

Center and incurred $111.24 in medical expenses; and his bill with Radiology

Associates was $50.00. We, therefore, award $1,242.74 for past medical expenses.

Custom Metal paid $328.00 for the court-ordered medical examination by Dr.

Clark Gunderson, but did not authorize the return visit, the MRI, or the physical

therapy recommended by Dr. Gunderson. As described above, Dr. Gunderson

related Mr. Marange‟s injuries to his work accident and found him temporarily

totally disabled (TTD). Accordingly, the demand for treatment recommended by

Dr. Gunderson, and the demand for TTD benefits, should have been granted.

Mr. Marange earned $15.00 per hour. Under La.R.S. 23:1021(12)(i),

he is entitled to the presumption that he worked forty hours per week during the

four full weeks preceding the accident, and can have his wage benefit calculated on

an average weekly wage (AWW) of $600.00, if he was a full-time employee and

regularly worked forty hours per week. If, however, he was offered forty hours per

week and regularly chose to work less than forty hours, his AWW will be

calculated on “the average of his total earnings per week for the four full weeks

preceding the date of the accident,” pursuant to La.R.S. 23:1021(12)(ii).

The record reveals that Mr. Marange worked overtime one week and

worked forty hours one week, but clocked out early on several occasions and did

not regularly work forty hours per week during the two months that he had been

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employed with Custom Metal. Michael McKean, Mr. Marange‟s regular

supervisor, testified that forty hours of work had been available weekly and that

Mr. Marange had left for personal business four times in seven weeks. Kyle

Bourgeois, Mr. Marange‟s acting supervisor, said everyone occasionally left early

for personal business, but there was enough work for forty hours per week.

Accordingly, Mr. Marange will not be entitled to the forty-hour presumption under

subsection (12)(i). Rather, his AWW for TTD benefits should be calculated on the

average of his total earnings per week for the four full weeks preceding the date of

the accident, pursuant to La.R.S. 23:1021(12)(ii). Mr. Marange‟s wage records

indicate that he earned $2,116.63 in the four full weeks prior to December 28,

2009. Therefore, his AWW is $529.16 ($2,116.63 ÷ 4 = $529.16).

Mr. Marange further asserts that the OWC erred in failing to award

penalties and attorney fees where Custom Metal failed to investigate and failed to

reasonably controvert his workers‟ compensation claim. We agree. The purpose

of imposing penalties is to “nudge the employer into making timely payments

when there is no reasonable basis for refusing or delaying its obligation.” Weber v.

State, 93-62, p. 8 (La. 4/11/94), 635 So.2d 188, 193. An employer refusing to pay

benefits has an affirmative duty to investigate an employee‟s claim and to ascertain

the exact nature of his complaints; the employer‟s failure to do so warrants the

imposition of attorney fees and penalties. See Capitol Mfg. Co., 745 So.2d 825.

There, we found that penalties and attorney fees were warranted where the

employer refused to complete an accident report and failed in its duty to investigate

the employee‟s claim or ascertain the exact nature of his complaints.

Louisiana Revised Statutes 23:1201(F), which is mandatory, provides

for reasonable attorney fees and for penalties of up to $2,000.00 for the non-

payment of each disputed claim, not to exceed $8,000.00 in penalties, unless the

14

employer reasonably controverts the claim or the non-payment results from a

condition over which the employer had no control.

In general, one can surmise from the plain meaning of the
words making up the phrase “reasonably controvert” that
in order to reasonably controvert a claim, the defendant
must have some valid reason or evidence upon which to
base his denial of benefits. Thus, to determine whether
the claimant‟s right has been reasonably controverted,
thereby precluding the imposition of penalties and
attorney fees under La.R.S. 23:1201, a court must
ascertain whether the employer or his insurer engaged in
a nonfrivolous legal dispute or possessed factual and/or
medical information to reasonably counter the factual and
medical information presented by the claimant
throughout the time he refused to pay all or part of the
benefits allegedly owed.

Celestine v. Firestone Polymers, L.L.C., 09-1534, p. 14 (La.App. 3 Cir. 5/5/10), 38

So.3d 527, 538, writ denied, 10-1237 (La. 9/17/10), 45 So.3d 1055 (quoting Brown

v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890).

Here, Mr. Marange reported the accident early on the morning after

the accident occurred, and he asked for medical treatment on that day. Within

thirty minutes, he received a call from the employer stating that the employer

would not pay for any medical treatment. Mr. Marange was not questioned about

the accident or his injuries. The basis for the denial was that he did not report the

accident on the day that it occurred. The employer‟s duty to investigate and to

gather factual and medical information on the employee‟s workers‟ compensation

claim is continuing. Celestine, 38 So.3d 527. Mr. Marange‟s subsequent demands

for medical treatment and wage benefits were ignored. When Mr. Marange finally

obtained a court-ordered examination by Dr. Gunderson in April of 2010, Dr.

Gunderson took Mr. Marange off work for a month and requested authorization for

an MRI. He also prescribed physical therapy. Custom Metal denied all benefits

and provided no factual or medical information to reasonably counter the factual

and medical information presented by Mr. Marange.

15

As we stated in Ducote v. Louisiana Industries, Inc., 07-1536, p. 4

(La.App. 3 Cir. 4/2/08), 980 So.2d 843, 846:

In Fontenot v. Reddell Vidrine Water District, 02-
439, p. 18 (La. 1/14/03), 836 So.2d 14, 27, our supreme
court interpreted La.R.S. 23:1201(F) as providing
“multiple penalties for multiple violations of
compensation and medical benefits claims.” However,
the supreme court left it to the office of workers‟
compensation and the appellate courts to “ferret out”
what actions by the employer warranted the imposition of
separate penalties. Id. at 26.

When presented with a claim for multiple
penalties, the first circuit made the following
observation:

From these cases, we can glean the
following guidelines: bills from different
medical providers can be considered as
separate claims; failure to authorize a
surgery by a particular doctor can be
considered a separate claim from other
treatment costs by the same doctor; the
mileage expense associated with treatment
by a particular provider is part of the claim
for payment of that provider‟s treatment;
incorrect calculation of a benefit amount is a
separate claim from the failure to actually
pay benefits; and that reduction of a benefit
amount constitutes yet another separate
claim on which penalties may be imposed.

Juracovich v. St. Anne Gen. Hosp., 04-1323, p. 4
(La.App. 1 Cir. 6/10/05), 916 So.2d 264, 266, writ
denied, 05-1819 (La. 1/27/06), 922 So.2d 552.

Here, where we have found that medical payments are owed to West

Calcasieu Cameron Hospital, W.O. Moss Regional Medical Center, Radiology

Associates; and where authorization for an MRI was denied, physical therapy was

denied, and a follow up visit with Dr. Gunderson was denied; and where TTD

benefits were denied, we award Mr. Marange $8,000.00 in penalties.

Additionally, we award attorney fees in the amount of $15,000.00 for

the work done by Mr. Marange‟s attorney at the trial court level, and we award

$5,000.00 in attorney fees for the work done on appeal.

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V.

CONCLUSION

Based upon the foregoing, the OWC judgment is reversed, and Henry

Marange is awarded medical and wage benefits as discussed in this opinion. Mr.

Marange is further awarded penalties in the amount of $8,000.00 and attorney fees

in the total amount of $20,000.00. Costs of this appeal are assessed to the

employer, Custom Metal Fabricators, Inc.

REVERSED AND RENDERED.

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